Wahid & Anor v Skanska UK Plc & Anor [2014] EWHC 251 (QB)

Case No QB/2013/0336[2014] EWHC 251 (QB)IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONON APPEAL FROM THE CENTRAL LONDON COUNTY COURTHIS HONOUR JUDGE GERALDVenue Royal Courts of Justice, Strand, London, WC2A 2LLDate 11/02/2014
Before
THE HONOURABLE MRS JUSTICE SLADE DBE
Between
(1) MR SAYED ASADULLAH ABDUL WAHIDClaimants(2) MR LUTFULLAH SHADKAM/Appellants(1) SKANSKA UK PLCDefendants(2) RIVERSTONE INSURANCE/Respondents
Barry Coulter (instructed by Ersan & Co.) for Claimants/AppellantsEmily Wilsdon (instructed by Plexus Law) for First Defendant/RespondentDavid R. White (instructed by DWP LLP) for Second Defendant/RespondentHearing Hearing dates: 17 th January 2014
Judgment
[1]The Claimants, who will be referred to as Mr Wahid and Mr Shadkam, appeal from the judgment of His Honour Judge Gerald of 17th May 2013 dismissing their applications to set aside an Order of District Judge Lightman, made on 9th and sealed on 21st April 2013 confirming that the claims of Mr Wahid and Mr Shadkam stood struck out. Alternatively they applied for relief from sanctions. The Claimants’ claims for personal injury alleged to have been suffered in a road traffic collision on 9th May 2010 had been automatically struck out on 3rd January 2013 for non-compliance with an Unless Order made on 11th December 2012 by DJ Lightman.[2]It became apparent during the course of the hearing before me that there was no basis for challenging the judgment of HHJ Gerald on behalf of Mr Shadkam. Mr Coulter, counsel for Mr Wahid and Mr Shadkam, realistically withdrew his appeal. Accordingly references in this judgment to Orders in these proceedings and steps taken in relation to them will be to those affecting and taken by Mr Wahid only.[3]In the personal injury proceedings Mr Wahid and Mr Shadkam say that on 9th May 2010 they were passengers in a car driven by Mr Abdulgany, originally a Claimant and now Part 20 Defendant, which was involved in a collision. It is alleged that a van belonging to Skanska UK plc (‘Skanska’) and driven by its employee collided with the car in which the Claimants were travelling. By their Defence, Skanska allege that Mr Abdulgany’s actions warranted explanation. One explanation suggested was that the collision may not have been a genuine accident but designed to facilitate claims by the Claimants. Riverstone, formerly Brit Insurance Limited, Mr Abdulgany’s insurers, were joined to the proceedings to protect their position in the claims brought by his passengers and in a counter-claim by Skanska. It was noted in the Order of HHJ Gerald that by 17th May 2013 Mr Abdulgany was “shortly to file notice of discontinuance of his claim.”[4]Before the matter came before HHJ Gerald, the following Orders had been made in the proceedings. On 3rd August 2012 Deputy District Judge Atkin consolidated under claim number 0UH02606 the proceedings brought by Mr Abdulgany and those brought by Mr Wahid and Mr Shadkam. In the consolidated proceedings Mr Abdulgany was the First Claimant, Mr Wahid the Second and Mr Shadkam the Third. Mr Wahid and Mr Shadkam were represented by Ersan and Co., solicitors, Mr Abdulgany by Fern and Co., Skanska by Plexus Law and Riverstone by DWF LLP.[5]On 3rd August 2012 Deputy District Judge Atkin made an Order which included the following: “9. There shall be standard disclosure by lists by 4:00pm 15 October 2012. … 11. The 2nd and 3rd Claimants’ lists shall include:(a) Photographic proof of identification, in the form of their passports or photo-card driver’s licence; and(b) A list of all road traffic accidents that they have been involved in, whether as passengers or driver, and irrespective of whether any claims were made arising out of those accidents; and(c) Copies of any medical reports outlining injuries sustained from those accidents. 12. The 2nd and 3rd Claimants shall provide signed mandates for the release of their clinical records by 4:00pm 15 October 2012.” (a) Photographic proof of identification, in the form of their passports or photo-card driver’s licence; and (b) A list of all road traffic accidents that they have been involved in, whether as passengers or driver, and irrespective of whether any claims were made arising out of those accidents; and (c) Copies of any medical reports outlining injuries sustained from those accidents.[6]Following a hearing before DJ Lightman on 11th December 2012 at which Mr Wahid and Mr Shadkam were represented, the Judge imposed a sanction conditional on failure to comply with paragraphs 9, 11 and 12 of the Order of 3rd August 2012 by 3rd January 2013 ‘the Unless Order’. It was ordered that:
“Time for the Second and Third Claimants to comply with paragraphs 9, 11 and 12 be extended to 4:00pm 3 January 2013. The statements of case of any party who fails to comply with this paragraph shall stand struck out automatically.”
Accordingly if these paragraphs of the Order of 3rd August 2013 were not complied with by 3rd January 2013 the statements of case of Mr Wahid and Mr Shadkam would be automatically struck out.[7]Solicitors for Riverstone, DWF LLP, wrote to the Central London County Court on 19th March 2013 referring to the Unless Order of 11th December 2012. They asked for “clarification of the current position” in light of the fact that in default of compliance with the Order of 11th December 2012 the claims of Mr Wahid and Mr Shadkam were automatically struck out. They referred to information given by him that Mr Wahid had been involved in a road traffic accident in 2005 “but no medical report has been provided”. They wrote:
“In addition, we have yet to received (sic) copies of Mr Wahid’s medical records. For the sake of completeness we confirm that the Second and Third Claimants have served lists of documents under cover of a letter dated 27 December 2013 together with a list of prior accidents.”
[8]Solicitors for Skanska, Plexus Law, wrote to the Central London County Court on 22nd March 2013. They outlined the position of Mr Wahid’s alleged non-compliance with the Order of 11th December 2012 as follows:
“(a) The Claimant Sayed Wahid has provided his clinical records. He has also served a Witness Statement, which outlines his involvement in an accident back in 2005, but a copy of the medical report outlining injuries sustained by him in that accident has not been disclosed…”
In light of breaches of the Order of 11th December 2012 by Mr Wahid and Mr Shadkam, Plexus Law requested:
“…that the Court enter judgment for the Second Defendant in accordance with paragraph 3.5(2) of the Civil Procedure Rules and also an Order in favour of its costs.”
[9]On reading the letter dated 22nd March 2013 from Plexus Law, and reviewing the Unless Order made on 11th December 2012, by Orders made on 9th and sealed on 21st April 2013 in claims 0UH02606 and 2IR66687 DJ Lightman “declared that as at 4:00pm on 3rd January 2013, the statements of case of both [Mr Wahid and Mr Shadkam] stood struck out.” The Claimants were ordered to pay Skanska’s costs of the action.[10]By a notice dated 7th May 2013, the Claimants applied for an Order that the Order dated 21st April 2013 be set aside and that the claims of Mr Wahid and Mr Shadkam be reinstated. Alternatively they asked for an Order for relief from sanction to have their claims reinstated. In paragraph 7 of a statement dated 8th May 2013 lodged in support of the application, the Claimants’ solicitor referred to a letter of 29th October 2012 in which she informed the Defendants’ solicitors that she had requested the Claimants’ medical reports from their previous solicitors. By fax dated 4th February 2013 to solicitors for the other parties Mr Wahid’s solicitor wrote:
“…Goldsmith Williams have informed us that as Mr Wahid’s previous accident was in 2005, they no longer hold file papers as its (sic) been more than 6 years they have closed the file.”
An attendance note made by the Claimants’ solicitor of a telephone call from David Roberts of Goldsmith Williams on 22nd January 2013 was exhibited to her statement “regading (sic) our letter requesting clients’ accident medical report.”[11]In a second witness statement of 15th May 2013 the Claimants’ solicitor stated that Mr Wahid’s signed and completed medical mandate had been sent to the Defendants’ solicitors on 8th October 2012.[12]In a witness statement dated 14th May 2013 opposing the Claimants’ application, Mr Tann, a legal executive with Plexus Law, solicitors for Skanska, wrote that although he received a signed mandate for the release of Mr Wahid’s medical records on 8th October 2012, on 22nd October 2012 he received a fax from the surgery named on the mandate “confirming that Sayed Wahid was not their patient.” On 29th October the legal executive wrote to the Claimants’ solicitors asking them to explain the “correspondence received from Sayed Wahid’s stated general practitioner.” No explanation was given.[13]Mr Tann summarised the failures by Mr Wahid and Mr Shadkam to comply with the Unless Order which in turn required compliance with the Order of 3rd August 2012 as follows:
“(a) Neither Claimant has supplied complete copies of their clinical records. …the General Practitioner cited on the mandate completed by Sayed Wahid has confirmed that he [Wahid] is not a patient of theirs… (b) …Sayed Wahid pursued an injury claim following a road traffic accident in 2005, but he has failed to disclose the medical report by him.”
Mr Tann asserted that no steps were taken to obtain the medical reports prior to the 3rd January 2013 deadline.[14]Miss Hooton, solicitor of DWF LLP made a statement on 15th May 2013 on behalf of Riverstone. Riverstone resisted the Claimants’ application of 7th May 2013 and adopted the arguments advanced on behalf of Skanska.

The judgment of HHJ Gerald

[15]The principal non-compliance with the Unless Order of 11th December 2012 to which the Judge referred was that of Mr Wahid and Mr Shadkam to provide signed mandates for the release of their medical records. The failure by Mr Wahid was stated in paragraph 7 of the judgment to be that he had provided an inaccurate mandate, naming the wrong GP. Counsel for Mr Wahid and Mr Shadkam conceded that the Order for provision of signed medical mandates had not been complied with.[16]The Judge held that the Order of 9th April 2013 which was challenged in the application of 7th May 2013 was “in actual fact merely a confirmatory Order of what had already happened, namely that statements of claim had been struck out automatically at 4:01pm on 3rd January this year.”

The Judge observed:

“Quite apart from the somewhat fundamental failure to address the mandate point, there is no explanation at all as to why the application was not made earlier, why it took over four months from the automatic strike out on 3rd January to issue the application.”
HHJ Gerald held:
“9. Now, the application which should have been made was for relief from sanctions imposed by 11th December 2012 Order and for an extension of time. There is therefore no relevant application before me at all.”
The Judge went on to observe that even if the application were treated as one for relief from sanctions of the 11th December 2012 Order, there were no circumstances in which it would be proper for the Court to exercise its discretion to grant relief from sanctions or an extension of time.[17]The Judge held that Mr Wahid and Mr Shadkam had still not complied with Orders relating to disclosure of medical records and that relevant enquiries were not made until after the expiry of the unless Order. It is clear from the context that the reference to “medical records” was to “reports of previous accidents” as the substance of the paragraph related to reports of Mr Shadkam’s accident in 2007 and Mr Wahid’s accident of 2005. It was not until 22nd January 2013 that enquiries were made in relation to Mr Wahid’s accident in 2005. The Judge held:
“That again evinces a complete disregard for orders of the Court.”
For these and other reasons HHJ Gerald refused the Claimants’ application.[18]Permission to appeal was refused on the papers but then granted at an oral hearing before Lindblom J. I was told by Mr White, counsel for Riverstone, that permission to appeal was granted after the Judge was shown a letter dated 13th June 2013 to Mr Wahid’s solicitors from a doctor at the GP surgery named on his medical mandate. The doctor stated that Mr Wahid was and had been since June 2001 a patient of the practice.[19]Mr Coulter for Mr Wahid stated that permission to appeal was granted on Ground 1 only on the basis that it was arguable that there had been substantial compliance with the Order of 3rd August 2012 by 3rd January 2013. The Notice of Appeal provides:
“Grounds of Appeal 13. The decision of the learned Judge was wrong or involved a serious irregularity in that the decision reached by District Judge Lightman and the subsequent decision by the learned Judge had relied on information and evidence from the Respondents, which information and evidence was either untrue or misleading, which reliance caused the decision to be unjust for the reasons found in the three grounds set out below. The learned Judge should have decided that the decision of District Judge Lightman was wrongly decided and that neither of the Appellants claims were struck out alternatively, that in exercise of his discretion he would allow relief from the sanction of striking out the Appellant’s claims. Ground 1 The Appellants were not in breach of the order of the 3rd August 2012 and that therefore the automatic strike out provisions had not been triggered and the claims were not struck out on the 3rd January 2013. In that: Re. Appellant Wahid a. The Appellants had provided a signed disclosure statement (1-34). b. The Appellant had provided a signed medical mandate under cover of a letter dated the 27th September 2010 (pre-dating the unless order). c. The Defendants had copies of the medical records of the First Appellant it is believed, on or about the 10th March 2013 (on the presumption of the records being posted on the 8th and arriving two days later). d. The Appellant had provided a list of his previous road traffic accident and provided a statement dated the 3rd January [1-46] and correspondence with his former solicitors dealing which (sic) statement and ith (sic) the medical reports which statement complied with the the (sic) Appellant’s duty under CPR 31 Disclosure and the order of the 3rd August 2012.”
Ground 1

Re. Appellant Wahid

[20]Mr Coulter made it clear that the only basis upon which the appeal is pursued is that the automatic strike out provisions had not been triggered as there had been no or no substantial breach of the Order of 3rd August 2012. Permission to appeal the refusal by HHJ Gerald to grant relief from sanction had not been given.[21]Rightly Mr Coulter did not apply for leave to adduce fresh evidence. Once solicitors for Mr Wahid had been informed on 29th October 2012 that the named surgery stated that Mr Wahid was not their patient they could at that time have pursued the matter and obtained the confirmation that he was their patient. Such confirmation was given on 13th June 2013. Although Mr Wahid’s solicitors wrote to Plexus Law on 1st November 2012 that they would shortly revert with regard to Mr Wahid’s GP details they did not do so. It is apparent from the letter of 13th June 2013 that confirmation that he was a patient of the practice given on the mandate was only sought by Mr Wahid’s solicitors on 6th June 2013. This was after the judgment now sought to be appealed. Such evidence could not satisfy the test in Ladd v Marshall [1954] 1 WLR 1489.[22]Mr Coulter stated that he had no quarrel with the judgment of HHJ Gerald on the material placed before him. On the basis of the GP surgery writing on 22nd October 2012 on the letter of 9th October to them from Plexus Law that Mr Wahid was not their patient and the concession made by counsel then acting for Mr Wahid that he had not complied with the part of the Order of 3rd August 2012 which required him to provide signed mandates for the release of medical records, the Judge did not err in concluding that Mr Wahid had failed to comply.[23]Mr Coulter contended that the fact that Mr Wahid’s medical records had been obtained “in relation to the mandate” was not drawn to the Judge’s attention at the hearing on 17th May 2013. In their letter of 22nd March 2012, Plexus Law for Skanska acknowledged that Mr Wahid had provided his clinical records. Mr Coulter submitted that it should be inferred that these had been provided in response to a request of the GP surgery made on behalf of Skanska. In paragraph 14 of his skeleton argument Mr Coulter asserted that the surgery sent Mr Wahid’s records to Skanska on 8th February 2013. It is said that if the learned Judge’s attention had been drawn to this fact he should have inferred that the records were sent following a request under the mandate. On this information the Judge would have concluded that Mr Wahid’s medical mandate named the correct GP surgery and that Mr Wahid had not been in breach of paragraph 12 of the Order of 3rd August 2012. Mr Coulter submitted that the fact that medical records had been provided to Skanska “was a crucial piece of information” which should have been drawn to the Judge’s attention by the Defendants’ representatives. Failure by the Defendants to draw this matter to the attention of the Judge was said to be a serious irregularity in the proceedings which, by reason of CPR 52.11(3)(b), should lead to the success of this appeal.[24]Mr Coulter submitted that as a correct mandate had been provided by Mr Wahid, despite the evidence and a concession to the contrary at the hearing before HHJ Gerald, he was not in fact in breach of paragraph 12 of the 3rd August 2012 Order and the automatic striking out of his statement of case on 3rd January 2013 was ineffective.[25]Mr Coulter contended that Mr Wahid was not in breach of paragraph 11c of the Order of 3rd August 2012 to provide copies of medical reports outlining injuries sustained from the accident in 2005 as he did not have a copy of the report and his former solicitor had disposed of it. No such report was any longer in existence. Mr Coulter submitted that paragraph 11 of the Order of 3rd August 2012 was an Order for specific disclosure pursuant to CPR 31.12. CPR 31.12 provides:
“(1) The court may make an order for specific disclosure or specific inspection.

(b) carry out a search to the extent stated in the order; …”

Counsel contended that because there was no Order under CPR 31.12(2)(b) requiring Mr Wahid to carry out a search for the medical report of 2005, he was not in breach by failing to specify what search had been undertaken for the document.

(b) carry out a search to the extent stated in the order; …”

[26]Based on these submissions, Mr Coulter submitted that at the time for compliance with the Unless Order Mr Wahid had in fact given a correct medical mandate naming the correct GP surgery. Further Mr Wahid was not in breach of paragraph 11c of the 3rd August 2012 Order regarding providing the medical report of his 2005 accident as it no longer existed and he was not obliged to state what efforts had been made to locate it as paragraph 11c of the Order had been for specific discovery and no requirement under CPR 31.12(2)(b) for a specified search for it had been made. Mr Wahid was therefore not in breach of paragraph 11c of the Order. The purported automatic strike out of the statement of Mr Wahid on 3rd January 2013 and its confirmation of 21st April 2013 were therefore said to be ineffective.[27]Miss Wilsdon for Skanska submitted that HHJ Gerald appreciated the importance of the medical mandates in the context of the claims made by the Claimants. The Defence raised an issue over the genuineness of the accident which gave rise to the claims. Counsel submitted that without an accurate medical mandate the insurers do not have the comfort of knowing that the medical records are complete. Miss Wilsdon pointed out that the representatives of Mr Wahid did not take any steps until after the judgment of 17th May 2013 to investigate or correct the initial reply by the medical practice named by him on his mandate that he was not a patient of theirs. As for not drawing to the attention of the Judge the receipt of medical records from the GP practice, Miss Wilsdon pointed out that the practice only sent these to the representatives of Skanska and not to Riverstone and did so after 3rd January 2013, the date for compliance with the Unless Order. In any event, counsel for Mr Wahid had conceded at the hearing before HHJ Gerald that the requirement to supply the medical mandate, whose accuracy was being challenged, had not been complied with by Mr Wahid.[28]Further, there had been non-compliance with the requirement to provide the medical report following the 2005 accident. No information had been given about the 2005 medical report until the Defendants had asked for it. Even then there was no direct evidence that the report was no longer available. Solicitors for Mr Wahid merely provided an attendance note of a telephone conversation to that effect on 22nd January 2013 with solicitors who had acted for Mr Wahid in 2005. This conversation was, in any event, after the date for compliance with the Unless Order.[29]Miss Wilsdon submitted that HHJ Gerald correctly recorded that the subject of the application before him, the Order made on 9th April 2013 merely confirmed the striking out. He correctly held at paragraph 9 that:
“There is therefore no relevant application before me at all.”
Accordingly the appeal could only succeed if the statement of case had not been validly struck out on 3rd January 2013. Miss Wilsdon submitted that Mr Wahid had not complied with the Unless Order and the statement of case had been validly struck out on 3rd January 2013.[30]Mr White, counsel for Riverstone submitted that the basis upon which Mr Wahid had been given permission to appeal was that there had been “effective” compliance with the Unless Order of 11th December 212. There is no such thing as effective compliance with an Order. Either there is compliance or not.[31]Even if there had been “effective” compliance with the Unless Order, Mr Wahid would have to show that the judgment under appeal was unjust because of a serious procedural or other irregularity in the hearing before HHJ Gerald within the meaning of CPR 52(3)(b). This was the only basis upon which the appeal could succeed, it having been said by Mr Coulter that he had no quarrel with the judgment of HHJ Gerald on the material placed before him. Mr White submitted that the failure to bring matters relating to the medical mandate to the attention of HHJ Gerald referred to by Mr Coulter were attributable to Mr Wahid’s representatives. His solicitors could have but did not obtain before the hearing or before the date for compliance with the Unless Order confirmation from the GP surgery named on the medical mandate that he was a patient of theirs. The failure to provide an accurate medical mandate as required in paragraph 11c of the Order of 3rd August 2012 was the principal basis upon which the Judge held there had been non-compliance with the Unless Order.[32]Mr White submitted that the argument now being advanced that Mr Wahid was not in breach of paragraph 11c of the Order regarding provision of the medical report of 2005 was wrong. It was based on the proposition that the Order to produce any medical reports relating to previous accidents was an order for specific disclosure. It was not. It was an Order for standard disclosure. Paragraph 11 particularised what was to be included in the standard disclosure list. There was an obligation on Mr Wahid which he had not fulfilled to include in his disclosure list a statement in accordance with CPR 3.10(4)(b) setting out those documents which were no longer within his control and what had happened to them. Mr Wahid did not indicate in his disclosure list what had happened to the medical report relating to the 2005 accident. There was a plain breach of CPR 31.10(4)(b). The Unless Order had not been complied with by 3rd January 2013 or thereafter in regard to the disclosure of the 2005 medical report.[33]Mr White contended that any application to set aside an Order, in this case a striking out Order, must be made promptly. HHJ Gerald was correct to say that there was no application to set aside the striking out of the statements of case before him not withstanding that this was what was being sought. By analogy with observations in the judgment of the Court of Appeal in Andrew Mitchell MP v News Group Newspapers Limited [2013] EWCA Civ 1537 the Court must proceed on the presupposition that the statement of case of Mr Wahid was properly struck out. Considerations of finality require that the striking out could only be challenged in very limited circumstances which do not apply in this case.[34]Mr White pointed out that Mr Wahid had legal representation at the hearing at which the Unless Order was made. He also had legal representation at the hearing before HHJ Gerald. A concession had been made on behalf of Mr Wahid that he had not complied with the requirement in paragraph 12 of the Order of 3rd August 2012 to give a medical mandate. The complaint against him was that his mandate was inaccurate. His legal representatives could have but did not produce evidence to show that Mr Wahid was a patient of the GP surgery named on the mandate. Further, Mr Wahid’s legal representatives could have but did not before 3rd January 2013 produce evidence to show what happened to the 2005 medical report.[35]Mr White submitted that whilst there must be a discretion to set aside the striking out of a statement of case if it was wrongly made, such an application must be on good grounds and made promptly. That is not so in this case. As was observed by HHJ Gerald, there was no application before him to obtain relief from the sanction imposed on 11th December 2012 by the Unless Order. There was no application to set aside the automatic striking out of the statement of case on 3rd January 2013. Mr White submitted that this appeal should not be allowed to be a tangential attack on the making of the Unless Order or the striking out of the statement of case.

Discussion and conclusion

[36]The appeal before me is from that part of the judgment and Order of HHJ Gerald made on 17th May 2013 by which he dismissed the application of Mr Wahid to set aside the Order made by DJ Lightman sealed on 21st April 2013 and made on 9th April. Permission was not given to appeal the dismissal of the application for relief from sanction.[37]Mr Coulter on behalf of Mr Wahid has sought to demonstrate that the statement of case of Mr Wahid should not have been automatically struck out on 3rd January 2013 for non-compliance with the Unless Order made on 11th December 2012. I agree with the observation of HHJ Gerald at paragraph 8 of his judgment that the application before him challenged the wrong Order. The Order sealed on 21st April 2013 which was the subject of the application made on 7th May 2013, confirmed the automatic strike out of Mr Wahid’s statement of case. The application before the Judge did not challenge the automatic strike out or the prior Unless Order. Because of the way the matter was advanced before him, the learned Judge understandably thought that the application which should have been made was for relief from the sanction of striking out imposed by the Unless Order. Having regard to the only ground upon which this appeal has been permitted to proceed, no issue of relief from sanction is before this Court. Ground 1 of the Notice of Appeal which was permitted to proceed, challenges the automatic strike out of 3rd January 2013, which was not the subject of the application before HHJ Gerald.[38]The Court of Appeal in Mitchell explained at paragraph 44:
“If a party wishes to contend that it was not appropriate to make the order, that should be by way of appeal or, exceptionally, by asking the court which imposed the order to vary or revoke it under CPR 3.1(7). The circumstances in which the latter discretion can be exercised were considered by this court in Tibbles v SIG Plc (trading as Asphaltic Roofing Supplies) [2012] EWCA Civ 518, [2012] 1 WLR 2591. The court held that considerations of finality, the undesirability of allowing litigants to have two bites at the cherry and the need to avoid undermining the concept of appeal all required a principled curtailment of an otherwise apparently open discretion. The discretion might be appropriately exercised normally only (i) where there had been a material change of circumstances since the order was made; (ii) where the facts on which the original decision was made had been misstated; or (iii) where there had been a manifest mistake on the part of the judge in formulating the order. Moreover, as the court emphasised, the application must be made promptly. This reasoning has equal validity in the context of an application under CPR 3.9.”
[39]At the hearing on 11th December 2012 at which Mr Wahid was legally represented, DJ Lightman extended the time for compliance with paragraphs 9, 11 and 12 of the Order of 3rd August 2012 to 3rd January 2013. Solicitors for Skanska had informed solicitors for Mr Wahid on 29th October 2012 that the GP surgery named by him on his medical mandate provided to them on 8th October 2012 had stated he was not their patient. On the material before this court it appears it was not until after the judgment of HHJ Gerald that Mr Wahid’s solicitors obtained evidence that he was the patient of the practice named on his mandate. Even if the sending by the GP surgery of Mr Wahid’s clinical records to Plexus Law is to be taken as leading to an inference that Mr Wahid had named the correct surgery on his mandate, on his solicitor’s own account this did not occur until 8th February 2013. On the information before the Defendants on the date for compliance Mr Wahid had given incorrect information on his medical mandate and so had not complied with the requirement of the Unless Order in this regard. It cannot be said that counsel for the Defendants misstated the facts before HHJ Gerald by failing to draw his attention to the fact that the GP surgery had sent Mr Wahid’s clinical records to them. The learned Judge had the letter dated 22nd March 2013 from Plexus Law to the court before him. The Judge referred to that letter in paragraph 7 of his judgment. In the letter of 22nd March 2013 solicitors for Skanska stated that Mr Wahid had provided his clinical records. If the legal advisors of Mr Wahid had wished to invite the drawing of an inference from this that Mr Wahid had given the correct information on his medical mandate they could have done so. Instead Mr Wahid’s counsel conceded before HHJ Gerald that he had not complied with the Order to give a medical mandate.[40]Even if the correct application had been made before HHJ Gerald on behalf of Mr Wahid it cannot be said that the facts on which HHJ Gerald made his decision in regard to non-compliance with the Unless Order had been misstated. Further, there would have been no basis for extending time to challenge the Unless Order of 11th December 2012 or the automatic strike out of 3rd January 2013. All the facts and matters now relied upon by Mr Wahid were available to him before the Unless Order was made. The Unless Order could have been resisted if it was thought the Order of 3rd August 2012 had been complied with. An application could have been made to set it or the automatic strike out aside if there were grounds for considering that the Unless Order had in fact been complied with. Instead, as HHJ Gerald observed, four months elapsed since 3rd January 2013 before an application was made to challenge the wrong Order.[41]The new argument now advanced on behalf of Mr Wahid that he was not in breach of paragraph 11c of the Order of 3rd August 2012 or the subsequent Unless Order because it was an Order for specific disclosure without an obligation to search for the medical report following the accident of 2005 is ingenious, but in my judgment misguided. Paragraph 11 of the Order of 3rd August 2012 set out the documents which the Claimants’ disclosure lists should include. The Order requiring disclosure by lists was in paragraph 9 which stated that there was to be “standard disclosure by lists”. Paragraph 11 did no more than particularise what was to be included in the list. An Order for specific disclosure is made following an application supported by evidence (see 31APD5). There is no suggestion that such an application was made in this case.[42]The requirement in paragraph 11 of the Order was for standard not specific disclosure. CPR 31.10(4) provides that the standard disclosure list must indicate:
“… (b)(i) those documents which are no longer in the party’s control; and (ii) what has happened to those documents.”
The list of documents provided by Mr Wahid did not include such a statement regarding the medical report following the 2005 accident. Whilst solicitors for Mr Wahid wrote to the Defendants before 3rd January 2013 to tell them that they were contacting the solicitors who had acted for him in 2005, it was not until after time for compliance with the Unless Order had passed that they provided information, a note of a telephone conversation on 22nd January 2013, which indicated that the former solicitors no longer had their files due to passage of time. HHJ Gerald rightly observed in paragraph 13 of his judgment:
“Insofar as Mr Wahid is concerned, it was not until 22nd January that enquiries were made in relation to a 2005 accident. That again evinces a complete disregard for order of the court.”
[43]HHJ Gerald did not err in concluding that there was no relevant application before him. The application was to set aside the Order of DJ Lightman sealed on 21st April 2013. The Order declared that the statements of case of the Claimants had been struck out on 3rd January 2013. There was no application to set aside the striking out on 3rd January 2013 or the Unless Order of 11th December 2012 pursuant to which the claims were struck out. The Judge was right to hold that in any event an application for extension of time would have been required to make an application for relief from the sanction of the 11th December 2012 Order and that there were no grounds on which it would be proper to do so.[44]As was held by the Court of Appeal in Mitchell in respect of relief from sanction under CPR 3.9, a challenge to the validity of the Unless Order of 11th December 2012 or the consequential automatic strike out of 3rd January 2013 would have to be made by way of appeal from that Order and the automatic strike out or by asking the court which imposed the Order to vary or revoke it under CPR 3.1(7). In the interests of finality in litigation considerations of delay would apply to such an appeal or application.[45]Even if despite the information before HHJ Gerald there had been compliance with paragraph 12 of the Order of 3rd August 2012 it is clear that paragraph 11c had not been complied with. More importantly the decision of HHJ Gerald was not wrong nor was his decision unjust because of a serious irregularity in the proceedings before him.[46]The appeal of Mr Wahid from the Order and judgment of HHJ Gerald of 17th May 2013 is dismissed.